Will the center hold, or will things fall apart and mere anarchy or a blood-dimmed tide be loosed upon the world?
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Writing about the impending Trump presidency shortly after the election, Harvard law professor Jack Goldsmith — a former assistant attorney general — gave a cautiously optimistic answer. The various instruments and forces that constrain any American president, he predicted, would spring into action in a “much more robust fashion” than had been the case and help avert danger to the constitutional order.
Goldsmith’s forecast has largely proved accurate. We have witnessed vigorous pushback against President Trump from key institutions of American life. The press is on fire. Civil society has been mobilized. The permanent government has been sprinkling sand into its own gears. The courts have erected roadblocks to dubious Trump policies. Even the Republican-controlled Congress has said no — or been unable to say yes — to most of the president’s agenda.
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Even so, nearly a year has elapsed in which key institutions have been subjected to an unremitting assault by the man at the apex of our government. Some have begun to show fissures. In the years that remain in Trump’s presidency, will they succumb to the pressure and crack apart?
The most alarming case is perhaps the most critical: the Justice Department, which oversees the FBI and is charged with ensuring the fair and impartial rule of law that is a cornerstone of our democracy.
During the campaign, Trump and his entourage used the chant of “lock her up” to whip up his followers into a lynch-mob hysteria funneled at Hillary Clinton. As president, Trump has kept up the drumbeat from the White House.
“Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems,” Trump tweeted in November in one of many such calls for action by an agency over which he himself presides. “What about the deleted emails, Uranium, Podesta, the server, plus, plus. People are angry,” the president continued. “At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!”.
After the depredations of Watergate, President Carter fulfilled a campaign promise to insulate the Justice Department from White House political interference. But the rules and procedures Carter put in place have been eroding over time. Under Trump, they are coming completely undone.
“I have (the) absolute right to do what I want to do with the Justice Department,” says the president. As a matter of law, Trump’s claim of unbridled power is false. As a matter of practice, the department is already visibly bending to the president’s will.
“Lock her up” appears to have been transformed from a campaign slogan into an official order. The bogus Uranium One case, allegations of corruption at the Clinton Foundation, the Clinton email server — all exhaustively investigated, all closed without criminal charges being brought — are now being exhumed. Just as Trump has demanded, the Justice Department is placing Clinton in the judicial crosshairs.
Unleashing the police on one’s defeated political opponents — calling for them to be locked up and then locking them up — has been the method of despots in banana republics. Now it is becoming a hallmark of America.
Where are House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell and Sen. Chuck Grassley, chairman of the Senate Judiciary Committee? Where are they as the rule of law is subverted, as ongoing criminal cases are publicly prejudged by the president, as the attorney general is demeaned by the president for following recusal rules, as the FBI is baselessly attacked, as sterling law-enforcement men such as James Comey and Robert Mueller are smeared while Roy Cohn, one of the worst scoundrels ever to pass the bar, is posthumously rehabilitated by the president? Deafening silence from them all.
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But the Republican majority in Congress has done worse than turn a blind eye to gross irregularities. Keeping silent about appalling transgressions at the Justice Department, they are voluble about invented ones. The entirely ginned up set of accusations against Deputy FBI Director Andrew McCabe is one case in point. The criminal referral by Grassley and Sen. Lindsey Graham against Christopher Steele, the author of the “Trump dossier,” is another on a list too lengthy to include here.
Republicans have long claimed to be the party of the Constitution. Their platform says they “respect the rule of law” and reject the ideas of a living Constitution and an “activist judiciary that usurps powers properly reserved to the people through other branches of government.” All worthy principles, which I fully share.
But Republicans have evidently mastered the art of the Faustian deal. If the president gives them what they want, they will support him come what may, ignoring his trespasses on custom, decency and law.
“Donald Trump deserves thunderous acclaim from conservatives for his outstanding record of judicial appointments during his first year as president,” writes Ed Whelan at National Review, without devoting so much as a syllable to the assault on justice being carried out by a president who has dragged his career of grifting into the White House.
We have arrived at a Catch-22. In the name of the rule of law, Republicans are willing to sacrifice the rule of law. Their credibility as advocates for constitutionalism is rapidly being consumed in a bonfire of hypocrisy. It is a pity for the rest of us that the blaze they have ignited is unlikely to stop at their threshold.
Gabriel Schoenfeld, a member of USA TODAY’s Board of Contributors and the author of Necessary Secrets: National Security, the Media, and the Rule of Law, was a senior adviser to the 2012 Romney for President campaign. Follow him on Twitter: @gabeschoenfeld.